Posted
by
BeauHDon Friday August 11, 2017 @08:25PM
from the broad-implications dept.

Robotron23 writes: Vinod Khosla, a Silicon Valley venture capitalist, has lost his appeal to privatize Martins Beach -- a publicly-owned strip of coastline in California. Having previously fenced off the land in a bid to render the area private, Khosla has been ordered to restore access by a California court. Khosla had previously demanded the government pay him $30 million to reopen the gate to the beachfront. The law of California states that all beaches should be open to the public up to the "mean high tide line." "The decision this week, affirming a lower court ruling, stems from a lawsuit filed by the Surfrider Foundation, a not-for-profit group that says the case could have broader implications for beach access across the U.S.," reports The Guardian.

Hawaii's beach access law is even stronger than California's. Not only is the beach public up to the highest wash of the waves, but the public is allowed to cross private land to reach the beach, and landowners cannot block their path.

This is the law of the land because a little boy was unable to reach the beach near his home and had to walk for miles to swim in the ocean. Then that little boy grew up, and became the Chief Justice of the Supreme Court of Hawaii.

Hawaiian law says that the shoreline is public land. The Supreme Court interpreted that law to require reasonable public access, since otherwise the law would be meaningless in many areas. The legislature can clarify the original law by amending or replacing it if they so chose, but they have never done that.

Though over the last few hundred years, much law has been legislated, still the courts interpret those laws, some of which are very vague, often on purpose as the legislature expects the courts to sort things out.

Bring a lawsuit to the courts, and the courts get to decide based on the law. When the laws are vague or contradict each other, then the courts decide. Nothing wrong with that. The legislature has the ability to change the laws however if they don't like the courts ruling. Nothing wrong with that either. Nobody ever has the final word.

Interesting. I'd like to know what caveats there are to that rule for Hawaii.

As for California, I'm surprised this went so long even for a billionaire. In real estate law (for every state I know of), there are rules about easements. If anyone ever allowed the public to cross their private land for any reason, that easement can be enforced for all future owners of the property. Seems pretty straightforward that this guy purchased property with an easement to the beach and so must maintain it.

Honestly, I think rich people just throw their money at it to keep it tied up in court for as long as they can. Malibu has the exact same problem - the beach is public, but the houses in front of it block access. The few public access gates are frequently locked (illegally) or vandalized by property owners to prevent the public from accessing the beach [latimes.com].

The basic idea is that you can't own the beach. You can own the land adjacent to it, but the beach (in California, up to the point where it's submerged during high tide) belongs to the public. Rich people have tried to get around this by buying up all the land in front of a beach to make it difficult or annoyingly distant for the public to access it. But the CCC responds by requiring a public accessway be installed if that happens.

That's exactly what they do, or in the case of corporations they just outright ignore the law and treat whatever penalty they get as an operating expense because it's so pathetic compared to their profits there's no reason to care.

Doesn't remind me about it. Zuck owns the property he wants to build a wall around. He sued to try and identify owners of the parcels of land within his property, but so far there was no attempt to cut anyone off or do anything else untoward against a handful of people.

He has supported higher taxes for alternative energy and stem cell research. He has donated to both Dem and Rep candidates, mostly moderates (at least by California standards). There is no record of him donating to a Libertarian.

It's actually quite interesting how few of the really wealthy capitalists are libertarian. I don't have the stats, but it feels like people making around $100K are the libertarians while those above and below aren't.

Libertarianism is free market capitalism and government only by contract. Libertarianism doesn't believe in any sort of collectivist rights -- there is no "public good," only what the individuals decide to do.
How is that *not* the definition of crony capitalism?

In parallel to the mortgage discussion, I'll spin up two other examples to discuss.

Doctor-assisted suicide. In the past, libertarians tell me that it ought to be legal for a doctor to help someone who wants to die kill themselves, and it ought to be easy and quick to prevent suffering. Nothing is more personal than timing your own death, and the state has no business sticking its nose in and limiting individual freedom.

Only Oregon in the USA currently allows the practice, and it has lots of regulation

As socialist liberal, I actually do sympathize with billionaires who invest in a great beachfront home and then have to let the public waltz through their beach. It kind of defeats the point of buying a beachfront home. But ultimately, unless the law was changed after he bought the place, he should've known the rules going in and bought something a bit off the beach instead.

He's not even being asked to share. He does not now nor has he ever owned the land he is trying to claim for his own. He is only being asked not to be a dirty thief.

Unless and until he ceases his anti-social behavior, he should be accorded all of the respect and admiration you would normally have for someone last seen picking school children's pockets for their lunch money.

Not only that, but they tried to stop [washingtontimes.com] a wind farm from being built that might spoil the view from one of their many estates. If it were one of the common people trying to block a wind or solar farm, any number of Kennedys would of course be the first in line to condemn them as evil anti-environmentalists.

Well he didn't try to take it, he DID take it. (he got the fence put up) Now he's finally being forced to return it.

Taking stuff is often not too difficult. It's the keeping it that's the challenge. And that's what separates the rich from the poor, as the rich can afford to pay their lawyers to try to hold onto it for awhile. (and sometimes indefinitely)

The oldest recognized law in Oregon is that everyone has access to the beach, you can't impede or infringe on that right.It was inherited from the native inhabitants, and despite it not having been written down before hand, was well recognized and benefits everyone.Californian developers and the like that come up here and try to take over sections of the beach get a very rude legal awakening.They've also tried to sue for "loss of value", but they always lose because the property they bought never included the beach in the first place.

Not everyone. There are times when it will impede the neighboring landowner from taking preventive measures to stop the erosion of his property by the ocean that everyone has access to. Putting in rip rap need not impede the public access to the beach, but it is prohibited anyway.

They've also tried to sue for "loss of value", but they always lose because the property they bought never included the beach in the first place.

The issue is when the property itself becomes "beach" because the owner cannot make any attempts at stopping it. Tell someone who used to have an acre of oceanfront property who now has no oceanfront property that he has lost nothi

Tell someone who used to have an acre of oceanfront property who now has no oceanfront property that he has lost nothing of value.

It wasn't taken by the state or the people, and you can't sue the ocean. I'd tell them what I would tell anyone who buys oceanfront property: if you can't afford to lose it, you can't afford to buy it. I come from Santa Cruz, where there are a few houses literally on the beach on pilings (actually I think they are technically in an unincorporated area) and they get smashed up now and again and then the wealthy owners rebuild, because that's how it works. And with ice melting and oceans warming, the coast is an even less tenable position than ever before in human history.

A class action law suit for the lost value of the beach to the public for the period of time they were illegally prevented access to it based on the claimed value put forward by the egoistic prick himself. So the rent on a claimed $30 million dollar asset plus penalties, likely doubling or tripling that, for the period access was denied and that money going to the local government as representatives of that community.

There isn't really a need need. My city just went through something similar (private developer locking gate to stairway through their development to a public beach). If the California Coastal Commission tells you to allow access and you refuse, they can fine you up to $11,250 per day (about $4.1 million per year). Granted a billionaire could stave off bankruptcy while paying the fine for hundreds of years. But if it came to that, I imagine legislation would swiftly be passed increasing the maximum daily

The bastard is ignoring the court ruling and is keeping the access way blocked. I'd like to see the judge issue an arrest warrant for contempt of court.

Well until the judgement is final it's not final. Though I like the approach they typically take to this type of cases here in Norway, which is to impose daily fines. They typically can't be stayed so you can delay and appeal all you like but the claim against you is constantly accumulating and if you eventually lose it's going to be pretty massive. It's the same for missing building permits and such too, they can't ask you to raze anything. But if you've built it illegally and want to drag it out through the court system a few years, it's going to cost you dearly.

That would suck for anyone who couldn't get their case heard quickly, which is something an individual has no control over. Plus in the US, the only way local laws are overturned is through the appeals process in a higher court. If the fine couldn't be stayed, nobody would ever appeal.

If he's in defiance of a court order, then yes, an arrest warrant is a real possibility. Now maybe he plans an appeal, and I suppose he can seek an injunction against opening the gate pending that appeal, but since, on the face of it, he's acting in violation of California law, it's unlikely he'd get his injunction, and it's unlikely an appeal would be successful. So sooner or later, he opens that gate, or he ends up in a jail cell. It's his choice.

I just want to see this fucker spend a few nights in jail. This case has been going on for years. When he bought the property, he knew there was legally mandated public access to the beach since it already existed. He's thumbing his nose at California law and trying to create his own private beach. fuck him.

In Longboat Key, Florida it was Arvida and similar developers who rolled up 14 miles of beach (99.5% of the island) and made it private. It went from virtually open - park anywhere you like along the 14 miles of road down to a couple of access points with about 14 TOTAL parking spots for the entire island, most of those on the extreme north end - during a period from the late 1960s to the mid 1970s.

Slowly, ever so slowly, they are prying open more public access points, I think they're up to about 50 parkin

I'm only guessing here, but I'm betting that being a billionaire he isn't locking the gate himself. He probably has some ex-special forces or UFC dudes as his private security, so good luck getting through them to do anything.

I'm not familiar with this particular case, but I'm guessing that the road was already there and may have already had an easement attached to it at the time of sale, in which case the new owner would still need to abide by it.

At the earliest moment when both the deed and the law were simultaneously in effect, the deed became defective as it lacked a required easement. The billionaire needs to put in a claim to his title insurance company because that is what has happened here: there is a pre-existing claim that is valid and must be satisfied. The title insurance the guy paid when he bought the property will compensate him for any drop in value. That's what it's for; and they should have seen this coming.

Easements based on historical usage have been a thing in English Common Law for several centuries. In CA, like most US states, English Common Law precedents apply unless explicitly changed by legislative action.

Failure of the property owner to understand the law of the land is not a taking under the Constitution.

Why is a public easement required across private land? At the very least, that's a "taking."

The public easement has always been required, so no owner has ever had exclusive rights to this type of land, and nothing has been taken. You can't "take" something from a person if they don't have it in the first place.

This is not California-specific. In common-law countries (the US is one), the one-two punch of land rights ending at a mean tide line, and a public right-of-way to access the sea, are literally *ancient*. As in, the common-law rights go back to the actual Byzantine Empire and have been inherited into legal systems descended from it, of which the US is one.

This is why the guy's trying all sorts of weird arguments in hope of seeing what sticks. IIRC his latest was trying to claim that the land he wants to close off shouldn't have been covered by this because of some random detail of the Treaty of Guadalupe Hidalgo.

Most parts of the US which have tidal waters have basically the same rule to guarantee public water access from the land, and unless he can come up with something truly stupendous he's not going to overturn 1500-ish years of how common-law systems work. He's also going to have a hard time arguing for a taking here, since it's not like this is an unknown or new thing. Just as when you purchase land with any other kind of easement or right-of-way, that comes as part of the deal.

Access to the beach legally predates and/or overrides grant of title to property adjacent to the beach. This usually means that local authorities are obliged to provide easements between street and beach, either through a land title, or as a public pathway between two titles. The actual application of this principle is left to your imagination.

Landowners trying to restrict access to public beaches in Australia are welcome to try. Fortunately our beachside councils are sensible that way. There's LOTS of acce

As it turns out, that is illegal in California. It's only that landowners need to keep an access path to the public beach. It's permissible for the legislature to distinguish suffocating people their home in dome and requiring an open access road.

From 1980 to 1990 I lived in Los Angeles without a car, farther from the beach than central L.A.. Bus service to the beach is adequate, and a bicycle would also work. There's more than 20 continuous miles of beach open to the public and easily reachable from public streets.

My dad lived in a development in the foothills that abutted BLM land. They had large lots (20 acres minimum) and most lots extended down into the canyons. One guy decided he didn't want anyone in his canyon wash, so he drove pilings in and fenced it off with locked metal gate. Within his right, but his house was 100 feet or more above the wash and about a half-mile drive up the wash and back down the road to his house.

Within about two weeks, the pilings and gate he put up were *gone*. Someone with a powerful truck and/or winch had yanked them up and taken them away.

My dad said that around there, you just didn't block "public" access into BLM lands, and if you tried, they would knock the gates down. It was fruitless, one guy tried steel I-beams and found them cut off with an acetylene torch.

Both. I've yanked out plenty of "No trespassing" signs that were clearly on BLM land and LR2000 showed absolutely zero claims within 20 miles of the area. You just can't go throwing up signage on BLM lands without proper permit, generally by way of patented land or actual mining claims.

Before saying anything you should familiarize yourselves with the history of that beach [surfrider.org]. I was somewhat familiar with the area before the controversy. I never visited that beach, even when it was "open" because you had to pay a parking fee. I guess I could have parked on Hwy 1 and walked down without paying, but there are other beaches where you can get a lot closer without paying a parking fee.

The state itself may or may not charge a fee for lots or roads close to beaches. For example, Pigeon Point--no fee in the lot, and plenty of road parking right by the beach. OTOH, Francis Beach in Half Moon Bay charges.

So. It seems well established that they can charge for parking convenient to the beach, and for many years that's what the prior owners did.

I think this dude shut off walk-in access. If he did, that's plainly over the line. AFAIK, walk-in has been restored. What's interesting is the dispute about parking.

IIRC, the Ritz Carlton Half Moon Bay doesn't charge for beach access parking. You just tell the lot attendant what you're up to, and he directs you to a spot in the parking garage if they're available. I think they do that to spread good will in the community though--maybe it was a condition of the development permit.

In other words, when it comes to parking at convenient lots, it's all over the map. IMHO, the real question is "what's a reasonable parking fee?" and/or "Does access to the beach imply parking?" Followed by... if it turns out that *free* parking is a requirement for public access, then all the government agencies that charge could be sued too... but I don't think it'll go in that direction. A sane ruling seems like something that would bring us back to the status quo: free walk-in, reasonable parking fees comparable to what state parks charge.

I think this dude shut off walk-in access. If he did, that's plainly over the line. AFAIK, walk-in has been restored. What's interesting is the dispute about parking.

Well, you're wrong. There is still a locked gate up across the property entrance. You can't park outside the gate, either, so you would need to get a fucking Uber or something to go to the beach. Until you have at least driven past the entrance (you will need to know where it is because that fuck also de-painted the sign, which is a classic California landmark) you probably do not have anything valuable to add to the conversation here.

Fine him 1 billion dollars and see if he wants to keep it restricted. Still no, fine him another billion for each and every week he fails to comply with the law. I forget which country, but one in europe adjusts fines based on worth. Super rich are not bothered by laws unless you make it hurt like it does for the rest of us. Isn't that really the point of a fine anyway?

Specifically both finland and switzerland can get you a 100K+speeding fine if you are rich. The poor pay less, much less. If a fine is meant to be a deterrent, and it is really, then the super wealthy can break the law with impunity with no real consequence here in the US. Of course it is not going to happen. As the story says, this billionaire is a friend of the left, so the cal gov will bend over to let him have his way. Much like in texas where right leaning billionaires get their way. As one of my frie

Their economy is in the tank because they have an economic monoculture and the oil price has tanked - a mistake all *isms can make, it's just bad management. See also things like Detroit depending on a single industry for examples.Other problems though are a direct result of how the place is run.

It's not window dressing it's the actual story. How it became the story may be because it is a government by and for thieves, but the crash of an economy that is almost entirely reliant on one thing is a lesson for everyone.

Venezuela is economically crippled because it is sill saddled with capitalism, and capitalists who collude overtly with the State Department and covertly with the CIA when they couldn't win at the ballot box

Their economy is in the tank because they have an economic monoculture and the oil price has tanked

Because the Saudi's have been overproducing for years in a price war. Which has been great as far as undermining their oil producing rivals like Venezuela, Iran and Russia, but they can't keep it up forever.

Other problems though are a direct result of artificial shortages and other US-backed manipulations

Fixed that up a bit. Even Obama couldn't keep a straight face when he announced sanctions against Venezue

Heck, the smart thing for him would be to turn the whole property into "Khosla beach", add some nice private facilities, and close it off temporarily for "private functions" on the couple of days that he actually might have time to spend there. Instant good press.

Well, no. It's illegal for him to close the right of way, period, whether he is there or not. The smart thing for him to do would be to fuck right off and move somewhere else because he is forever going to be known at a fuckbag. People will be taking a shit and throwing it onto his property, throwing beer bottles at his house and the like forever more. Especially when it comes to beaches, many Californians are passionate about public access.

Heck, the smart thing for him would be to turn the whole property into "Khosla beach", add some nice private facilities, and close it off temporarily for "private functions" on the couple of days that he actually might have time to spend there. Instant good press.

Well, no. It's illegal for him to close the right of way, period, whether he is there or not. The smart thing for him to do would be to fuck right off and move somewhere else because he is forever going to be known at a fuckbag. People will be taking a shit and throwing it onto his property, throwing beer bottles at his house and the like forever more. Especially when it comes to beaches, many Californians are passionate about public access.

Californians are used to rich taking their beaches. Go try to find a public one in Malibu? If you get on the beach you will be prompted by security asking how you got here and arrested for trespassing or beat up by the rich locals for going on their turf etc.

In their mind they paid good money for it and it is their god given right. Hell, Nixon's former residence new owner has a cannon who shoots potatos at surfers who dare go on his beach.